United States v. Russell

PETITIONER: United States
RESPONDENT: Russell
LOCATION: Allegheny County District Court

DOCKET NO.: 71-1585
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 411 US 423 (1973)
ARGUED: Feb 27, 1973
DECIDED: Apr 24, 1973

ADVOCATES:
Philip A. Lacovara - Argued the cause for the United States
Thomas H. S. Brucker - By appointment of the Court, argued the cause for the respondent

Facts of the case

At the conclusion of an undercover drug investigation, Richard Russell was arrested by Washington police and eventually convicted in a district court for drug manufacturing crimes. Russell challenged his conviction as the result of unconstitutional entrapment practices, since an undercover agent supplied him with an essential ingredient of his drug manufacturing operation. On appeal from an adverse Court of Appeals decision, the Supreme Court granted the government certiorari.

Question

Does an undercover law enforcement officer's participation in criminal conduct constitute entrapment in violation of the Fifth Amendment's due process protections?

Media for United States v. Russell

Audio Transcription for Oral Argument - February 27, 1973 in United States v. Russell

Warren E. Burger:

We’ll hear arguments next in 71-1585, United States against Russell.

Mr. Lacovara you may proceed whenever you’re ready.

Philip A. Lacovara:

Mr. Chief Justice and may it please the Court.

This case, United States against Russell involves a very important issue in the criminal justice system.

Basically, whether a new defense to criminal liability is to be created that will focus exclusively on the nature of the conduct of an investigative agent in uncovering and detecting the criminal enterprise.

The Court of Appeals for the Ninth Circuit from which this case comes has held that such a defense should be created.

The facts are basically simple and they are very few and probably no relevant controversies about the facts.

On December 7, 1969, an undercover agent for the Bureau of Narcotics and Dangerous Drugs accompanied by an informant, went to the home of the respondent, Richard Russell and there met with Mr. Russell and two other co-defendants in this case, John Connolly and Patrick Connolly.

The agent in his testimony, set forth on page 4 of the appendix, explained what happened when he went to Mr. Russell’s home.

I told Richard Russell and the two Connollys that I represented an organization interested in controlling the manufacture of methamphetamine, that is the dangerous drug involved here.

And then I represented the organization in the northwest area and I wanted to meet with the people who were manufacturing the methamphetamine and I wanted to obtain methamphetamine from them.

The agent later explained that the terms of this business proposition to these people whom he said he understood to be manufacturing methamphetamine was that he would supply one of the chemical ingredients in the manufacture of the drug, phenyl-2-propanone in return for half of the output and he would like to buy the rest of the output for cash.

Without any attempt to disabuse him of his understanding that they were currently manufacturing methamphetamine or to express any reluctance whatsoever to the business proposition the undercover agent put, Patrick Connolly said, “we’ve been manufacturing methamphetamine since at least May of 1969 and have manufactured about three pounds of it.”

I might say for purposes of illustration that I've been told by the Bureau of Narcotics that the average medically recommended dose of methamphetamine is five milligrams according to the U.S. Pharmacopeia.

The average illicit dose on the street is 10 milligrams which means that each gram of methamphetamine will produce approximately 100 illicit doses.

Potter Stewart:

How many grams in a pound?

Philip A. Lacovara:

453 grams in a pound.

As we will see Mr. Justice Stewart, the amount of methamphetamine involved in this case would be enough for approximately 3,500 illicit doses and perhaps 7,000 illicit doses.

William O. Douglas:

Is this the drug that is commonly known as “Speed”?

Philip A. Lacovara:

Yes sir.

Methamphetamine is Speed.

It’s a stimulant drug.

The prosecution in this case arises under the Food, Drug, and Cosmetic Act.

That Act is now been superseded by the 1970 Comprehensive Drug Abuse and Control Act.

Speed remains a control of drug under the new statute as well.

The agent however insisted that he would not provide any of this important ingredient unless and until the three-man partnership whom he confronted provided him with both the sample of the methamphetamine they had already manufactured, and also showed him the laboratory.

Patrick Connolly then with the agent left Mr. Russell’s house, brought the agent to his own home where he showed him some items of laboratory equipment.

Before they left Russell’s house, John Connolly gave the agent a sample which he said “Had come from the last batch that had been manufactured.”

I emphasize that at no time did Richard Russell in whose presence that’s all occurred attempt to dissociate himself from the enterprise.

Pursuant to the arrangement, the agent return to Russell’s house the next, December 8th, but was told by Russell that Russell and Patrick Connolly had been unable to get the other chemicals necessary to manufacture the methamphetamine because they had arrived too late at the chemical supply store on the afternoon of the 8th.